Beyond Crandall: Feds found negligent

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Originally published April 1, 2008

WASHINGTON - The federal Mine Safety and Health Administration was "negligent" in its duty to protect underground miners in the Crandall Canyon mine disaster and in mines across the nation, the U.S. Department of Labor's inspector general said in a report issued Monday.

An audit of events preceding the two collapses last August that claimed nine lives found that lower-level MSHA officials skipped many of the agency's own protocols in approving a roof control plan for the Crandall Canyon mine and could have beensubject to "undue influence" by the mine's operator.

MSHA boss Richard Stickler, who declined to comment Monday, said in a written response to the I.G.'s report that his agency "can - and will - make changes" to its standard operating procedures. But he challenged the report's findings that the agency was negligent, saying the inspector general does not "provide evidence that MSHA negligently breached its duty to protect miners through its administration of the [federal] Mine Act."

Stickler said he was gratified the I.G. could not conclude MSHA gave preferential treatment to the mine operator, UtahAmerican Inc. However, he said, the I.G. placed the "impossible burden to prove a negative" in that MSHA could not show that its decisions were free from undue influence by the operator.

Still, the I.G.'s findings underscore what families of the nine men have said since the disaster and addresses what MSHA critics have charged: The agency has not done all it can to safeguard the nation's miners.

The audit ''just corroborates what we've said all along," said Ed Havas, a Salt Lake City attorney representing the heirs of seven miners killed in the collapses and two men injured in the rescue effort. Six miners were buried in an Aug. 6 implosion of the mine walls. Three rescuers died in a second collapse 10 days later.

"It was a faulty roof-control plan. It shouldn't have been submitted in the first place. It shouldn't have been approved. And the companies involved in the ownership and operation did not follow the approved plan to boot," Havas added.

The inspector general's report appears to back another recent report by Sen. Edward Kennedy's Health, Education, Labor and Pensions Committee.

That report, issued on March 6, said the operator's parent company, Ohio-based Murray Energy Corp., bullied MSHA to gain approval of its overall mining plan. It urged the Justice Department to open a criminal investigation into the disaster. Justice has not determined if it will open a formal inquiry.

Murray Energy officials did not respond to requests for comment.

"We've argued for years that many at the upper levels of MSHA are more interested in helping mine operators increase production than they are in helping miners stay safe," United Mine Workers of America President Cecil Roberts said Monday. "The Kennedy report and the I.G.'s report both blow the lid off the internal workings of the agency, exposing for all to see what actually happens and confirming what we've said."

MSHA's own accident investigation team is expected to report its findings in a few months. Agency officials say no one should make judgments about the disaster until all facts are known.

The I.G.'s report doesn't address the cause of the disaster or assess blame for the deaths, but it does castigate MSHA for a lack of documents supporting its approval of Crandall Canyon's mining plan, which included a dangerous method called retreat mining. It involves removing the coal columns supporting the mine's roof, which is allowed to collapse as workers move outward.

MSHA "could not document how it evaluated the proposed plans or on what basis it approved them," except for a summary of events a supervisor jotted down after the first collapse Aug. 6, the report said.

MSHA's district office in Price addressed only eight of the 20 mandatory criteria set out by the agency's headquarters for sanctioning a mining plan, said the I.G.'s 80-page report.

Additionally, the report said MSHA could not prove UtahAmerican and Murray Energy didn't have undue influence on accelerating approval of the mining plan at the Emery County mine.

"MSHA's actions and inactions, taken as a whole, lead us to conclude that MSHA lacked care and attention in fulfilling its responsibilities to protect miners," wrote Inspector General Elliot Lewis, who is independent of Labor Department leadership.

The report offered nine recommendations to MSHA, including launching a rigorous, standard and transparent process for district offices approving mining plans and establishing explicit criteria for evaluating the safety of proposed plans.

Of MSHA's 11 district offices, the one covering Utah regularlyincluded in its approval process less than half those criteria the agency requires for approving a mine'sroof control plan, the second-worst record of all offices.

A House-passed overhaul of mine safety laws is awaiting action in Kennedy's Senate committee, although MSHA has said it already is implementing parts of the proposed legislation.

Rep. Jim Matheson, a Utah Democrat whose district includes Crandall Canyon, said it was "alarming" that a government agency didn't follow its own rules. "What good does it do for us to set regulations if the organization that is supposed to implement those regulations doesn't do so properly?" Matheson said. "That's what I find disturbing."

Matheson's brother Scott, a University of Utah law professor who headed a state mine safety commission appointed by Gov. Jon Huntsman Jr. after the disaster, said the report affirms his group's conclusion that Utah "should consider conducting its own independent review of certain roof control plans" and collaborate "actively" with MSHA on safety matters.

House Education and Labor Committee Chairman George Miller, D-Calif., whose committee also is investigating the disaster, said the report highlights the fact that miners using retreat mining "remain at serious risk" because of MSHA's "deeply flawed process" for reviewing and approving mining plans.

Davitt McAteer, head of MSHA during the Clinton administration, said the report'srecommendations are positive, particularly the suggestion that MSHA have a defined set of written criteria for approving a mine plan.

That way, operators and MSHA officials know exactly what needs to be done, "not leaving it to where you have one individual or two individuals in a particular district who are being pressed by the mine operator - in this instance and many other instances - because the operator wants to go forward," McAteer said

Sen. Orrin Hatch, R-Utah, who has defended MSHA's role at Crandall Canyon, said Monday the I.G. report "indicates MSHA must do a better job of documenting how it approves, monitors and enforces roof-control plans. The process must be transparent as possible."

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